Balkinization: Progressive Political Science: Feminism

Progressive Political Science: Feminism

Mark Graber

Not being an expert on the subject, I have always wondered whether feminists in political science who write on legal matters speak with a different voice or accent than feminists in the legal academy. Consider Our Lives Before the Law, by Professor Judith Baer of Texas A&M, who (along with Leslie Goldstein) is the most distinguished senior feminist in public law. One virtue of the book, I think, is that Professor Baer recognizes that liberalism, republicanism, and broad isms are not inherently male, that all have variants that are more or less attractive for women (perhaps one place where political scientists speak with a different accent is most of us who write on constitutionalism have taken several graduate courses in political theory). Theories fail in practice, Our Lives Before the Law asserts, because fundamental responsibilities in all societies tend to devolve downwards. Whatever the master theory, liberalism, socialism, feudalism, etc., social life is organized so that such basic duties as providing care for the young, care for the elderly, and cooking and cleaning are poorly compensated and assigned to the least powerful segments of society. No matter what the general organizing principle of a regime, men are always better placed to take advantage of opportunities and better positioned to foist certain undesired responsibilities off on women. The solution to this problem, Professor Baer astutely observes, is neither to celebrate female capacity for caring or assert in the abstract that women are the same as men, but simply to empower those who engage in those tasks that are necessary for society to survive. Just as the early abolitionists observed that we cannot determine much about the capacity of persons of color until they have equal opportunities for education and jobs, so Baer correctly notes that we cannot determine the capacities of women until society equally values soldiering and childbirth, both risky activities, or lawyering and childraising. Rather than focus on women per se, Professor Baer wishes us to focus on certain activities necessary for societies to survive. This is valuable for feminists and non-feminists alike, an important insight for political theorists of all persuasions.
Maybe 37 feminists in the legal academy are saying the same thing, but not from my limited reading. The theory and empirical analysis struck me as sharper, possibly because, like other political scientists, Baer's work is peer reviewed. Still, readers of this blog looking for alternative legal feminists might try Our Lives Before the Law, then post comments on the virtues or vices of the piece compared to the standard feminist law review essay.
I thought about Our Lives Before the Law last night when I accidentally stumbled into the national meeting for the American Constitutional Society. It really is a wonderful program, filled with terrific speakers. And, as important for me, it takes place the week after swim season ends (parents of summer swimmers know the significance of that). But, of course, all the speakers are lawyers and law professors. Maybe that is okay. After all, the American Constitutional Society sometimes seems simply an organization of lawyers. My fussing about speaker selection is a bit like my complaint that no Jew was allowed to vote on the pope. Still, I suspect that conversation will not be limited to legal method and doctrine, that a good deal of political science, philosophy, history, sociology, etc., will be central to many presentations. In this vein, might it be reasonable to think that debate on progressive alternatives might be improved by having Professor Baer on the panel devoted to reproductive rights (and/or Professor Frymer--who has a law degree--on the panel devoted to unions). Maybe next year?

Posted 10:27 AM by Mark Graber [link]